La protection des droits acquis élément constitutif de l'État de droit? Remarques sur la jurisprudence constitutionnelle polonaise

Abstract

The tension between the necessity of change in law and the need of legal stability is one of the most important problems in the period of democratic transition in Poland. The Constitutional Court in its decisions undertakes efforts to conciliate these two values by recognizing the principle of protection of established rights. The legislator and the other state agencies should neither retract nor restrain a subjective right of an individual or an expectancy of such a right. In the present article, the authors examine the substance of this principle, the justification of its binding force in the decisions of the Constitutional Tribunal as well as its functions in the constitutional practice. The recognition of the principle in question had, as main objective, to bring a guarantee to the individual against an arbitrary action of the power and to establish a criterion of a correct change in the legal System. The constitutional practice, however, is not without problems. The flexibility of the principle established by the judge does leave him a considerable margin of appreciation and allows to modulate its intervention in the political process.